Julius Joseph @ Isambi vs Republic (Criminal Appeal No. 766 of 2023) [2026] TZCA 181 (27 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: KEREFU, J.A.. KAIRO, J.A.. And NANGELA, J.A.) CRIMINAL APPEAL NO. 766 OF 2023 JULIUS JOSEPH @ ISAMBI ...................................................... APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Karayemaha, J.^ dated the 22n dday of May, 2023 in Criminal Appeal No. 152 of 2022 JUDGMENT OF THE COURT 20th & 27th February, 2026 KEREFU, J.A.: The appellant, JULIUS JOSEPH @ ISAMBI, was arraigned before the District Court of Chunya, at Chunya in Mbeya Region (the trial court), on the offence of rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code, Chapter 16 of the Revised Laws (the Penal Code). The particulars of the offence on which the appellant was charged were to the effect that, on 19th December, 2017 at Mnazi Mmoja Hamlet, Mawelu Village within Chunya District in Mbeya Region,

the appellant had unlawfully carnal knowledge of a girl child aged one (1) year. To conceal the victim's identity, we shall henceforth refer to her as 'the victim/ The appellant denied the charge laid against him and, as a result, the case proceeded to a full trial. To establish its case, the prosecution relied on the evidence of four witnesses and one exhibit, to wit, the Police Form No. 3 (exhibit PI). On his side, the appellant testified alone, as he did not call any witness. Briefly, the prosecution case, as obtained from the record of appeal, can be stated as follows: That, at the material time, (PW1), the mother of the victim was living at Mnazi Mmoja Hamlet, Mawelo Village with her children including the victim. That, on 19th December, 2017, at around 18:00 hours, PW1 went to the well to fetch some water, while leaving her twins (a boy and a girl aged one-year-old), to Ndele Ponali, one of her neighbours. A moment later, when PW1 came back from the said well, she noticed that one child (the victim) was missing. It was the testimony of PW1 that, Mama Rahabu told her that, the appellant had taken her child and went with her to a local brew shop to purchase oil. PW1 rushed to the said shop but, in vain. She therefore decided to go straight to the appellant's house. Upon arrival and while still outside, she heard her

child crying inside the appellant's house. When she peeped inside through the window, she saw her one-year-old girl lying naked on a piece of a timber and the appellant was also naked, busy smearing the bodyline oil on the victim's vagina. Suddenly, PW1 entered inside the appellant's house while raising an alarm for help and, quickly, picked her child. The appellate put on his clothes and fled from the village for a long time about six months. It was the further testimony of PW1 that, by the time she picked her child, the appellant had already raped her and was preparing to repeat the same. Having inspected the victim's private parts, PW1 found semen, blood stains, oil and bruises on her labia majora. PW1 reported the matter to Gerald James Ng'umbi (PW4), the Hamlet Chairperson, who convened the villagers to assist her to trace the appellant and report the matter to the police where she was issued with PF3 (exhibit PI) and took the victim to Chunya District Hospital for medical examination and treatment. At the said Hospital, the victim was attended by Moris Mdoe (PW2), the Assistant Medical Officer, who found that, the victim's vagina had bruises on labia majora and blood stains, an indication that it had been partially penetrated by a blunt object. PW2 recorded his findings in the PF3 (exhibit PI).

PW1 went on to state that, since the appellant escaped from the Village, immediately after the incident, the police issued her with an RB for tracing and arresting him. As such, the appellant was arrested in May, 2018. In his testimony, PW4 supported the evidence of PW1 and added that, due to PW l's financial constraints, he collected some money from the Hamlet members to enable her to take the victim to the police. Lusiana Anyingile Kayuni (PW3), one of PW l's neighbour who responded to the alarm testified that, on the fateful date she also went to the scene and found the victim. That, upon inspecting her private parts, she found blood stains. That, other people who gathered at the scene, assisted in tracing the appellant but in vain, but later, on 26th May, 2018, the appellant was arrested by the citizens. In his defense, the appellant (DW1), admitted to know PW1, as his neighbour and a girlfriend (lover). The appellant also admitted that, on the fateful date, when he returned from Chunya town to collect HIV/AIDS medicine, went to PW3 for a drink and later, he went back to his house. That, PW1 went to his house because they were lovers. He thus, dissociated himself from the accusations levelled against him and challenged the evidence of PW1, PW3 and PW4 that, they gave untrue story before the trial court. That, he knew nothing about that crime and

that, the case was framed against him due to hatred after he joined TASAF Program. At the end of it all, the trial court found that the charge against the appellant was proved to the hilt. Thus, the appellant was found guilty, convicted and sentenced to life imprisonment. The appellant's appeal before the High Court hit a snag, as the first appellate court dismissed the appeal and upheld the trial court's conviction and sentence. Still aggrieved, the appellant has preferred the present appeal. In the memorandum of appeal, the appellant raised four grounds, which can be conveniently paraphrased as follows: One, failure by the first appellate court to consider his grounds of appeal; two, the prosecution case was not proved beyond reasonable doubt as PW1 did not mentioned the age of the victim and the said victim was not summoned to testify before the trial court; three, failure by the prosecution to summon material witnesses (the victim) to testify before the trial court; and finally, the appellant defence evidence was not considered. At the hearing of the appeal, the appellant appeared in person whereas the respondent Republic was represented by Mr. Lordgud Eliamani, learned State Attorney.

When given an opportunity to amplify on his grounds of appeal, the appellant adopted them and preferred to let the learned State Attorney to respond first, but he reserved his right to rejoin, if need to do so would arise. We respected his choice and we thus invited Mr. Eliamani to commence his response on the grounds of appeal. From the outset, Mr. Eliamani declared the respondent Republic's stance of opposing the appeal and intimated that he will argue the grounds of appeal in the manner indicated above. Before determining the grounds of appeal, we wish to state that, this being a second appeal, under normal circumstances, we would not interfere with concurrent findings of the lower courts if there were no mis-directions or non-directions on evidence. Where there are mis directions or non-directions on the evidence, the Court is entitled to interfere and look at the evidence with a view of making its own findings. See for example Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] TLR 149 and Mussa Mwaikunda v. The Republic [2006] T.L.R. 387. We shall be guided by the above principle in disposing this appeal. Starting with the first ground on the appellant's complaint that the first appellate court did not adequately considered his grounds of appeal, Mr. Eliamani referred us to pages 59 to 76 and argued that the

appellant's complaint is not supported by the record, as the first appellate court adequately considered his grounds and rejected them. The learned State Attorney insisted that, rejection of the appellant's grounds by the first appellate court does not mean that the same were not considered. To support his proposition, he cited the case of Kelvin Nyondo v. Republic [2024] TZCA 1255, and urged us to find the first ground devoid of merit. Having perused the record and considered the submission by the parties, we agree with Mr. Eliamani that the appellant's complaint on this ground is not supported by the record, as indeed, the record bear it out at pages 62 to 76 that, all his grounds were adequately considered by the first appellate court. On that basis and in terms of our previous decision in Kelvin Nyondo (supra), we find the first ground devoid of merit. On the second and third grounds, the appellant stated that, the prosecution case was not proved beyond reasonable doubt, as material witnesses including the victim and one Ndele Ponali, who were mentioned by PW1, were not summoned to testify before the trial to shed more light on what exactly transpired on that fateful date. The appellant also blamed the prosecution for failure to prove the age of the victim as even her clinic card was not tendered. It was his argument

that, the said omission had weakened the prosecution's case and hence raised doubt which should be resolved in his favour. In response, although, Mr. Eliamani readily conceded that the said witnesses were was not summoned before the trial court to testify. He, however argued that, in the circumstances of this appeal, it could not have been possible for the prosecution to summon the victim, a one- year-old child, to testify before the trial court. In addition, and to substantiate his argument, he cited section 152 of the Evidence Act, Cap. 6 of the Revised Laws (the Evidence Act) and argued that, the said law does not require a specific number of witnesses to prove a fact, as what is required is the quality of evidence and credibility of witnesses. He thus insisted that, in the instant appeal, the prosecution case was proved beyond reasonable doubt by the evidence of PW1, the mother of the victim, who clearly narrated what transpired at the scene of crime and her evidence was corroborated by PW2, PW3 and PW4. That, having established its case against the appellant, the prosecution found it unnecessary to summon other witnesses. He also added that, it is a settled law that, an accused person can be convicted without a testimony of the victim. To buttress his proposition, he cited the case of Christopher Marwa Mturu v. Republic, Criminal Appeal No. 561 of 2019 [2022] TZCA 652. He then added that, since in this appeal, the

age of the victim was proved by PW1, the mother of the victim and PW2, through exhibit PI, the appellant's complaint is baseless. He thus also urged us to find the second and third grounds unmerited. Having carefully considered the submissions made by the parties and scanned the entire record of appeal, we agree with Mr. Eliamani that, both courts below properly evaluated the evidence on record and were satisfied that the case against the appellant was proved beyond reasonable doubts. We have specifically revisited the testimony of PW1, who clearly explained on how the incident occurred. PW1, in particular, at pages 7 and 8 of the record of appeal, narrated on how the appellant picked the victim to his room. She clearly narrated on how she peeped through the appellant's window and saw her one-year-old girl lying naked on a piece of a timber and the appellant was also naked, busy smearing the bodyline oil on the victim's vagina ready to repeat an awful act to the child. PW1 also testified on how, she entered inside the appellant's room and rescued the victim and the appellant disappeared from the hamlet/village for a long time, from 12th December, 2017 until when he was arrested by the civilian on 26th May, 2018. In addition, PW1 also explained on how she inspected the victim's private parts and found semen, blood stains, oil and bruises on her labia majora. 9

As intimated above, the testimony of PW1, was well corroborated by PW3, PW4 and PW2, who medically examined the victim's private parts and confirmed that, the victim's vagina had bruises on labia majora and blood stains an indication that it had been partially penetrated by a blunt object. We therefore agree with the submission made by Mr. Eliamani that, the victim being a child of one year, her presence could be dispensed with and the evidence adduced by PW1, PW2, PW3 and PW4 was sufficient to ground the appellant's conviction as we decided in Christopher Marwa Mturu (supra). All these witnesses, in our view, proved the prosecution case to the required standard. In addition, PW1 was a credible witness as she mentioned the appellant immediately after the incident. On this point, we wish to refer to our earlier decision in Marwa Wangiti Mwita & Another v. Republic [2002] T.L.R 39, where we observed that: "The ability o f a witness to name a suspect at the earliest opportunity is an important assurance o f his reliability, in the same way as unexplained delay or complete failure to do so should put a prudent court to enquiry . " It is also on record that, throughout the trial, the appellant did not cross examine PW1, PW2, PW3 and PW4 on all those aspects. It is trite 10

law that, a party who fails to cross examine a witness on a certain matter is deemed to have accepted and will be estopped from asking the court to disbelieve what the witness said. We find support in our previous decisions in Cyprian Athanas Kibogoyo v. Republic, Criminal Appeal No. 88 of 1992 (unreported) and Hassan Mohamed Ngoya v. Republic, Criminal Appeal No. 134 of 2012 [2013] TZCA 347. We however, wish to emphasize that, as correctly argued by Mr. Eliamani, pursuant to section 152 of the Evidence Act, there is no particular number of witnesses which is required in proving a certain fact, what matters is the weight of evidence and credibility of a witness. Besides, it is the prosecution that has the duty to prove its case and the right to choose which witnesses to call so as to give evidence in support of the charge. See for instance, the cases of Yohanis Msigwa v. Republic [1990] T.L.R. 148 and Abdallah Kondo v. Republic, Criminal Appeal No. 322 of 2015 [2016] TZCA 836. That said, we equally dismiss the second and third grounds of appeal for lack of merit. The appellant's last complaint hinges on the failure by the lower courts to consider his defence evidence. He contended that, both lower courts did not objectively evaluate and/or analyze his defence evidence and no reasons were assigned for such omission.

Responding, Mr. Eliamani challenged the appellant's complaint that it was not supported by the record as his defence was adequately considered by both lower courts. To clarify his argument, he referred us to pages 33 to 36 and 69 to 74 of the record of appeal, respectively. He then urged us to dismiss the fourth ground for lack of merit. In rejoinder submission, the appellant did not have much to say other than urging us to consider his grounds of appeal, allow the appeal and set him at liberty. Having perused the record of appeal, we agree with Mr. Eliamani that the appellant's complaint under this ground is not supported by the record, as it is clear that, at pages 57 to 59 and 69 to 74 of the record of appeal, respectively, both lower courts adequately considered and weighed the appellant's defence against the prosecution case but rejected it for being incapable of weakening the prosecution case. We wish to emphasize that, it is one thing to consider the defence case and it is quite another to accept it. It cannot be argued that the defence was not properly considered merely because its version was not accepted by the court. See the case of David Gamata and Another v. Republic, Criminal Appeal No. 216 of 2014 [2015] TZCA 362. We are increasingly of the view that, the above facts together with the appellant's conduct of disappearing from his hamlet/village, 12

immediately, after the incident, and emerged after a period of almost six (6) months is inconsistent with his innocence. See our previous decisions in Omary Kijuu v. Republic, Criminal Appeal No. 39 of 2005 [2007] T7CA 231 and Rashid Mtanga Ahamadi v. Republic, Criminal Appeal No. 249 of 2008 [2011] TZCA 139. Specifically, in the former case, having been faced with an akin situation on the conduct of a disappearing person who had been alleged to have committed an offence, we stated that: "...The appellant disappeared from his village immediately after the event. He emerged two (2) years later and got arrested. This act of disappearing immediately after the event and reappearing after so long is inconsistent with his innocence." [Emphasis added]. Likewise, in the current appeal, the conduct by the appellant of disappearing from his hamlet/village as testified by PW1, PW3 and PW4, signified his guilty conscience on the unlawful acts he committed towards the victim. That said, we equally find the fourth ground of appeal devoid of merit. For the foregoing reasons, we do not find any cogent reasons to disturb the concurrent findings of the lower courts, as we are satisfied 13

that the evidence taken as a whole establishes that the prosecution's case against the appellant was proved beyond reasonable doubt. In the event, we find the appeal devoid of merit and it is hereby dismissed in its entirety. DATED at MBEYA this 27th day of February, 2026. R. J. KEREFU JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL The Judgment delivered this 27th day of February, 2026 in the presence of the Appellant in person, Ms. Mwajabu Tengeneza, learned Principal State Attorney for the Respondent/Republic via virtual Court and Ms. Christina Mwanandenje, Court Clerk; is hereby certified as a true copy of the original. 14